Re: copyright/ plastic surgeon

On Wed, 21 May 1997, G. de Bruin <blueger[_at_]worldaccess.nl> wrote:
>
> Can anyone tell me if a plastic surgeon (in the USA) has a copyright
> on his work? So, if he or she gives you eg. a new face, is that work
> protected as a copyrightwork? And if so, how does that relates to the
> operated person?
>
> I really tried to find the answers in the Dutch law, but here in
> Holland that problem is not solved yet.

It seems to me that the work is not copyrightable because it's not a writing. I suppose you could argue that it's a form of sculpture, but would it be considered separable from the "useful article" to which it is attached? Perhaps one could argue that it is conceptually separable, but I doubt that would work. But I still doubt that the design would be considered copyrightable.

(I seem to recall a character in Tom Robbins' novel "Even Cowgirls Get the Blues" who is a plastic surgeon who is a frustrated painter; one day he decides to create a cubist nose job on one of his patients, and was considering a pointillist-style work on another before being hauled off to the loony bin. Maybe he'd have a copyright in his work, if it isn't too derivative of Bracque or Seurat!)

Another argument in favor of copyrightability would be that copying the design constitutes a copying of any underlying diagram or blueprints that the original plastic surgeon created in connection with his or her work. (I have no idea whether plastic surgeons operate in this fashion or not.) The closest analogy I can think of is the case law holding that one is free to copy the designs of clothing and (prior to the 1990 amendment that provides for the copyrightability of architectural works) buildings. Could you argue that one who creates a piece of clothing or a building that copies another's design is actually making a copy of, say, the original designer's blueprints, which are protectable writings? My recollection is that courts uniformly rejected this argument. On this basis, I'd say there's no copyright over the plastic suregery either.

I wonder if tattoos are different. They might seem closer to a recognized copyrightable work of authorship, namely pictorial works. Does anyone know if the unauthorized copying of a tattoo constitutes copyright infringement? For that matter, what about a possible moral rights violation? If I get tired of my tattoo and decide to have it removed, am I violating the rights of the artist in a protected work of visual art? (Maybe not -- maybe a tattoo is considered "applied art," exempt from the definition of visual art?) If so, does that mean the artist can enjoin me from mutilating or detroying the work?
>From publicly displaying the mutilated work? I would think the
thirteenth amendment might have some applicability here . . . .

For that matter, tattoos could be trademarks as well, I would think; didn't Dennis Rodman seek to enjoin someone from selling a shirt that looked his distinctive pattern of tattoos? But I doubt that any form of plastic surgery would be sufficiently distinctive to be trademarkable.

Thomas F. Cotter
Assistant Professor of Law
University of Florida College of Law
Gainesville, Florida 32611-7625
(352) 392-2235 (office)
(352) 392-3005 (fax)

cotter[_at_]law.ufl.edu